Judges T von Danwitz, C Vajda (Rapporteur)
Advocate General H Saugmandsgaard Øe
Six people, including the intervenor, were prosecuted for their membership of an organised criminal group operating in Bulgaria. The participation of at least three persons was required to form an organised criminal group under national law. The intervenor wished to enter into a plea bargain, in which he admitted his guilt in exchange for a reduced sentence. In accordance with the rules of national procedure, that agreement was submitted for approval to the referring court, which was empowered to make changes to it. In that regard, the referring court questioned whether the other five accused persons who had not entered into the agreement and for whom the case continued under the ordinary criminal procedure, could be clearly and expressly identified as members of the organised criminal group or whether that was contrary to article 4(1) of Parliament and Council Directive 2016/343/EU, which provided that member states had to ensure that, for as long as a suspect or an accused person had not been proved guilty, public statements made by public authorities, and judicial decisions, other than those on guilt, did not refer to that person as being guilty. The Bulgarian court, accordingly, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling a question on the interpretation of article 4(1) of the Directive.
On the reference—
Held, in the present case, subject to determination by the referring court, reference in the agreement to the five accused persons as joint perpetrators of the offence was necessary in order to establish the guilt of one party by way of his participation in an organised criminal group. However, it appeared that the agreement did not make it clear that the five accused persons were accused separately and that their guilt had not been legally established, which was for the referring court to determine. In the absence of such clarification, that agreement was likely to present those persons as being guilty, contrary to article 4(1) of Parliament and Council Directive 2016/343/EU. However, the referring court had the possibility under national law to amend the terms of that agreement. In those circumstances, article 4(1) required that the agreement be approved, if necessary, only after an amendment clearly indicated that the five accused persons were being prosecuted in the context of separate criminal proceedings and that their guilt had not been legally established. Accordingly, article 4(1) of Directive 2016/343 did not preclude an agreement in which the accused person recognised his guilt in exchange for a reduction in sentencing, which had to be approved by a national court, and expressly mentioned as joint perpetrators of the criminal offence other accused persons, who had not recognised their guilt and were being prosecuted in separate criminal proceedings, on the condition that the reference was necessary for the categorisation of the legal liability of the person who entered into the agreement and that the same agreement made it clear that those other persons were being prosecuted in separate criminal proceedings and that their guilt had not been established (judgment, paras 36, 46–50, operative part).
T Henze, E Lankenau and M Hellmann, agents, initially and E Lankenau and M Hellmann, agents, subsequently, for the German Government.
G Palmieri, agent, and S Faraci for the Italian Government.
R Troosters and Y Marinova, agents, for the European Commission.